Essay in defence of Scott Watson
I have been asked to explain the reasons why I am convinced of Scott Watson’s innocence and why I continue to seek a review of his case when, legally at least, it has become a lost cause.
I have been involved in this case from the 5th of January 1998 when police first made contact with me to find the whereabouts of Scott. Since then I have observed all of the proceedings of the investigation, trial, and appeals. I have observed the media involvement and the involvement of the “victims”. I know many of the witnesses and their habits. I have come to know many more through reading their various statements to police, and court testimony. I have noted the progression of these statements as the investigation proceeded and just how much of what was said to police transferred itself into sworn testimony. Mostly, I have observed people and tried to understand their motives, keeping in mind that no witness saw a crime being committed and none had reason to remember anything at all about the night.
“Instead of investigating, police start with the answer and collect evidence to match it”.
Paul Davison QC.
At the beginning of the investigation police were looking for a longish haired unshaven man. By January 8th Scott had seen the police twice and the description of the mystery man had developed tattoos on his arms. None of the five crucial witnesses aboard the Naiad described a man with tattoos, but these tattoos lent a suitably sinister tone. Police had “the answer” and the ketch was history. By the 12th of January we were aware of a few boats that had been searched by police. None had been removed from the water. Scott’s boat was, and was hauled through the main street of town while Scott was being interviewed by police. Police comment on this was: “we’re taking your boat and when the media find out they’re going to crucify you”. Blade was and is still the only vessel to have been seized and searched in this manner. It took two further days for Scott to be publicly named as “the suspect” although police denied this up until the time of Scott’s arrest.
I then saw a campaign, initiated by police, to publicly discredit various witnesses, particularly Ted and Yvonne Walsh who were ridiculed for the descriptive term “Chinese Junk” that was used by them to describe the vessel that they saw. The house to house inquiry designed to let neighbours know that, “we know it’s him”. The inquiry aimed at linking Scott with Guy Wallace, where nearly every bar and restaurant worker in Picton was shown photographs of Scott, Sandy Watson and Wallace and asked to link them together.
I observed the mind games that police attempted to play on my family. The searches of our homes for no real reason. The campaign to isolate us from the community, and each other. None of this rang true. Police did not seem to be conducting an investigation so much as a war of attrition on Scott and his family.
“…..Off the record however, Rob Pope told a select few journalists that Watson was their man, building a powerfully prejudicial picture of not only the suspect but also his immediate family."
Control of the Crime Story
Free Speech vs Fair Trial
It was evident that “the answer” had been found and no other was being considered.
I saw how police were pressured from many quarters to get a “result” and how, after discarding the search for the ketch and focusing on Scott, they were unable to retrace their steps due to the lapse of time wasted on this tack.
Six and a half months of this later Scott was arrested and it appeared that the arrest was made on the strength of Guy Wallace’s supposed identification and DNA testing of one hair, which was not decisive enough to be presented to a court, plus a large helping of wishful thinking on the part of the police.
I then observed the trial. I saw how the prosecution disguised facts with sheer drivel. This was especially noticeable with crown witnesses who had important defence testimony to give. A morning spent clarifying the finer points of tying two boats together here, a couple of hours spent on tidal streams and currents there. I observed the “victims” holding court among the witnesses as they waited in the foyer of the court to be called. I observed again and again, the jury having to pass through this jolly gathering as they entered or left the court. I observed the husbands or wives of witnesses joining the “victims” in their reserved seats and at times even the witnesses themselves stayed for their pat on the back. I observed highly paid detectives acting as van drivers to bring the witnesses from the airport or hotels where they used the opportunity to “limber up” witnesses. I saw and heard hundreds of witnesses who provided not one bit of evidence that really related to the case or the decision that the jury would be asked to make. I watched and I learned and was disgusted by what I saw.
After the trial and appeal I came into possession of the disclosed material and transcripts of the trial. It did not take long to realise that this was not Operation Tam, but Operation Watson. I read it from beginning to end. I read it all again and only then could I begin to classify the information that it contained. This classification process continues to this day, four years after the trial. I would find points that I thought important and did not remember hearing of in the evidence at trial. It would be there though. I had heard all of this at the trial and I did not remember any of it. Did the jury? I could go back and look items up, the jury could not.
I also found things that were not presented to the jury. I found “mistakes” in police files. I found assumptions made by police that were not verified, or were contradicted by witness statements. I saw the progression of witness statements over time. I was able to see the levers used by police to make their case. I saw the perfectly legitimate lines of inquiry that were abandoned as soon as they could not be assigned to Scott Watson.
· · Tunnel Vision is insidious. It can affect an officer or, indeed, anyone involved in the administration of justice with sometimes tragic results. It results in the officer becoming so focussed upon an individual or incident that no other person or incident registers in the officer's thoughts. Thus, tunnel vision can result in the elimination of other suspects who should be investigated. Equally, events which could lead to other suspects are eliminated from the officer's thinking. Anyone, police officer, counsel or judge can become infected by this virus.
Peter deC. Cory
Inquiry into the wrongful conviction of Thomas Sophonow
In all of this I did not find anything convincing that could direct me to a conclusion of guilt or even of doubt.
The basic case
The essential question that had to be answered by the trial was: Had the prosecution proved, beyond reasonable doubt, that Scott Watson was the person aboard the Wallace naiad with the missing pair. The judge put to the jury his view of the identification issue thus:
“…. You have to be satisfied on the evidence that he was in fact with Olivia and Ben when last seen…”
“..However, the Defence says there is real doubt that it was Watson with Olivia and Ben and as I say, to repeat myself, this lies at the heart of this case.’’
“..The Crown must prove that he was the person who got onto the boat with Olivia and Ben and there was no possibility it was another person on another boat, then you are entitled to convict him. If you have any reasonable doubt about that scenario as I have said, you must acquit him…”
“..Mr Davison (the Crown Prosecutor) stressed at the outset that the issue was one of identity and indeed that is so……..”
“……Whilst you can use that information as going to motive, that as an identifying consideration would be of no use, if you were not sure that it was Watson who was with Olivia and Ben at the last time they were seen.
“…. You have to take a detached cold look at the evidence on this topic to ensure you are satisfied that it was Olivia and Ben with him at the critical time.
“…. If the evidence shows that he was not there at the relevant time or poses a reasonable doubt, and this is what this case is about in many ways, that it was him with Olivia and Ben, then he moves out of the frame…”
And from the Court of Appeal:
“The real issue at trial was whether the two victims accompanied the appellant and boarded his yacht on the last occasion of their sighting.”
I believe that the jury lost sight of this question and became lost in the overwhelming character assassination that was contained in the bulk of the evidence presented to them.
The crown case
The crown case in support of Scott being this man was:
a. The purported identification of Scott by Guy Wallace as being the man served in the bar and aboard the naiad.
b. The Wallace “identification” was said to be supported by the montage identification of Scott as “the man in the bar” by Roz McNeilly, who was bar manager on the night.
c. Evidence of the man aboard the naiad having a “receding” hairline, as presented by Amelia Hope.
This is the essential basis of the Crown case. It was the evidence that was used to justify Scott’s arrest and the subsequent trial.
Before the defence to these points can be considered these must first be an understanding of the:
Timing of Events of New Years Eve
Scott’s activities during this time can be tracked during the important periods of the evening and morning. There are credible sober witnesses and documentation to support these times.
The important time periods are:
1. 9:30pm. The time that Scott went ashore. (This is important only as it relates to the evidence of Guy Wallace that he served this man at 8:00 pm)
2. The time of return (12:30am.) and retiring (2:30 – 3:00am) of the "Mina Cornelia group”. (Important as it relates to the Crown “two trip” theory and Anderson trip timing).
3. The time of the beginning and end (2:30 – 3:15am) of the “Perkins incident” as described by Scott in his statements. (Relates to “two trip” theory and time of Anderson naiad trip)
4. The time of the Anderson trip.(2:00 – 4:00am)
5. The time of the Wallace Naiad trip. (about 4:00am)
Evidence that refutes the Crown contention
The evidence of Donald Anderson puts Scott aboard his boat at about 3:30 am or slightly later. It is conceded by the crown that this occurred.
The evidence of Dave Mahoney and various people aboard the ‘Mina Cornelia and Bianco supports this, confirms that Scott was alone on arrival and also disproves the crown contention that the trip occurred earlier (2:00 am) as the combined evidence of these people is that there were people on deck aboard the raft of boats until about 3:00 am. None of them observed an arrival at the raft and the ones awoken by Scott’s arrival confirm that they had been asleep for some time after retiring at 2:30 am.
The Perkins group collectively time the incident in which Scott was involved with them as occurring between 2:30 and 3:30 am. Simon Bell and his crew put the end of this incident at 3:15am.
Anderson puts the time of his trip to Blade as after returning John Mullins to his boat at 3:30 am and just prior to his coffee break aboard Foam. Many witnesses agree that it was during this "coffee break" that the Wallace naiad trip occurred. Anderson’s hostility to the defence can be seen by his complaint to TVNZ in December 2003.
Prior to the 20th of April 1998, when the alleged montage identification by Wallace took place, there is evidence that he was shown photos of Scott on a number of occasions. One of these consisted of a formal identification procedure using montage A in one of its forms. Wallace did not choose Scott at this time. This information was withheld from the defence. It was not disclosed until the publication of the police approved book, "Silent Evidence", during 2000. For the defence and the jury to have known of this at trial would have been powerful evidence detracting from the later “identification. Wallace again said that Watson was not the man on the naiad when shown video footage prior to February 4 1998 and repeated this at the depositions hearing when shown a photograph of Scott taken on the evening of 31st of January 1998.
Wallace now totally denies the suggestion that the man aboard the naiad was Scott Watson.
Bar ID Said to Corroborate The Wallace ID
In November 2000 Roz McNeilly provided a sworn affidavit, on her own initiative, which states that the man from the bar was not Scott Watson. She came to this conclusion after seeing the photograph of Scott taken on New Years Eve aboard Mina Cornelia which was published in the police authorised book, "Silent Evidence". She has since further stated that she was guided to her original ID by police.
“Receding Hairline” Evidence
As one of the important five witnesses who travelled on board the naiad with the mystery man, one of the first things that strike the observer is the lack of contact with police that Amelia Hope had. She seems to have been questioned hardly at all about the description of the third man on the naiad. On 4/1/98 She describes the man as being, “White, slim and quite tall, late 20’s” and describes the taxi driver as “late fifties, 5’9” tall, wasn’t a big guy, with tattoos on his legs”, a description of John Mullin who she also identified in person as being the driver.
On 10/2/98 Amelia hope made a further statement to police. In it she tentatively identifies Guy Wallace as the taxi driver. She also first describes a receding hairline on the mystery man in this way: “It may have been receding off his forehead, his whole hair was receding, but not majority. I could see his forehead through his hair. You could tell that it would have been if he had his hair shaved off”.
By the time this description was given images of Scott Watson had been presented on television, but more importantly a suspect profile of Scott, complete with photos, had been in the possession of her father, Gerald, for some time prior to this statement. Hope was not averse to distributing this document.
There was no cross examination of this witness in court because of the emotive way direct examination was carried out. It would be a brave defence lawyer who would be so un-PC as to cross-examine this poor “victim” and the rules of evidence would allow the crown to submit this highly defamatory and prejudicial document to the jury, should any mention of it be made by the defence.
The “Identification” evidence as it stands today
The only person, (Guy Wallace), who could attempt an identification of the man aboard the naiad now confirms that that man was not Scott Watson.
The person, (Roz McNeilly) who it was said, supported Wallace in this “identification” now confirms that Scott Watson is not the person she described.
Evidence that Wallace, at least, was shown photos and also participated in a formal identification procedure involving montage A throws doubt on Wallace’s later selection of photo 3, in montage B. He could well have been drawn to the similarity to other photos that he had been shown.
Evidence that it was probable that Amelia hope had seen a police “suspect profile” was not put before the jury. They did not have the opportunity to consider whether her late “receding hairline” description could have been influenced by this document
Had the above evidence been put to the jury it would be exceedingly difficult, if not impossible, for them to form an opinion that Scott Watson was aboard the naiad during the Wallace trip.
Logically the evidence of the hair loses any value if the missing pair were not delivered to Blade by the Wallace naiad. It is also important, when weighing the credibility of this evidence, that it be considered that hair is a portable item. Had blood, saliva or any other body fluid been found aboard blade we could assume that it arrived there in its natural container. Hair was all that was found and hair was all that was available to police as a reference. When the time frame that this hair was found in is considered, there is a direct correlation between the date that the hair first appeared and the time that maximum public and political pressure was being exerted on police to “get a result”, mid March 1998. The poor test results could also suggest some degradation of the DNA from the hair.
Two hairs among numerous others were said to have been found aboard Blade. One of these hairs produced a DNA result at the ESR laboratory in Auckland. This result could not be repeated and was thus of no evidential value. A further test of the remaining extract was carried out by an Australian laboratory and supported the ESR findings. No control sample was provided by the ESR to parallel this test. Statistical analysis provided ‘odds’ of 28,000 to 1 that this hair came from Olivia Hope, when results of both tests were combined. The ESR test alone provided ‘odds’ of 640 to 1. This is far from the millions to 1 ‘odds’ usually associated with DNA test results. The evidence resulting from these tests was weak and led to a decision to further test the hair by mitochondrial DNA testing at a preliminary cost of some $70,000.
The two hair shafts along with others were then sent to England to undergo mitochondrial DNA tests. The hair that provided a nuclear DNA result provided a mixed result (that of more than one DNA profile) in England. The other hair did provide a result implied to confirm that this hair belonged to Olivia Hope. No result was obtained from a second test required to confirm the first. Further testing supported this conclusion although contamination was present in the further tests. This summary is by necessity concise and does not fully represent the detail of the tests but the nature of mitochondrial DNA should be understood.
Mitochondrial DNA is not a personal identifier. It is passed on through the female genetic line and is normally used as an identifier of race or isolated populations over a long period of time. The effect of the Mitochondrial test was to imply that the tested hair belonged to the daughter of Janice Hope.
Professor Bryan Sykes explains it thus:
“Any two people, in your family, your town, your country – even the whole world – are linked through their mother’s mothers to a common maternal ancestor. The only difference between any two people is this: How long ago did this woman live?
“If two people shared a common maternal ancestor in the recent past, then their Mitochondrial DNA will not have had time to change through mutation. Their mtdna sequences will be exactly the same”.
The mutation rate of Mitochondrial DNA is about once in 10,000 years. Thus, rather than the ESR scientist stating:
“However mitochondrial DNA instead of being inherited from both your parents, is inherited only from your mother and this means that all siblings or brothers and sisters will have the same mitochondrial DNA and they will have the same mitochondrial DNA as their maternal aunts and maternal cousins, So its substantially less discriminating between individuals that nuclear DNA.”
She should have informed the jury that the subject of the tests would have the same mitochondrial DNA as any maternal ancestor who existed within the past 10,000 years.
It should be pointed out that the crucial two hairs were not found aboard Blade but in a laboratory in Auckland. They were found after a number of inspections of Blade, the blanket and the many hairs taken from the blanket. They were found shortly after the area and personnel At ESR were exposed to sample hairs from Hope. No account could be given of the number of sample hairs submitted to ESR or received by them. There was a slit in the bag of reference hairs, which could not be explained. Of the hairs collected from the blanket only five (if the two hairs in question were indeed in the bag) were blonde and the two crucial hairs were of six and ten inches in length.
* Body/pubic hairs 132
* Brown head hairs 220
* Animal hairs 16
* Blonde to light yellow blond 3 +2 Located previously
* Red brown to orange brown head hairs 17
At about the time that the Operation Tam exhibits were being tested there was another case (Operation Rex), which was experiencing trouble at the ESR lab. This concerned the ESR’s finding that a person who had not been out of Christchurch had provided DNA found at a crime scene in Wellington. During subsequent investigation the impression was given that there was a chemical “contamination” of the samples. It was found when the test was performed again from the beginning that the same result was obtained and that the “contamination” was physical rather than chemical and it would seem that some person had physically corrupted the original scene sample with the blood of this innocent person.
A new laboratory was built for the ESR on the strength of the result of the inquiry into this, “mistake”.
While there is much to think about in this evidence, the dramatic effect of the mantra, “D N A” can lead one to think that this is somehow important in itself. Without Scott Watson being the person aboard the Wallace naiad and Blade being the terminus of this trip this evidence has no worth at all.
When the hairs from the blanket were finally counted and classified (days before the trial) it was found that sixteen of these hairs were of animal origin. There was, and is, no evidence that any animal had ever been aboard Blade.
Jailhouse informants comprise the most deceitful and deceptive group of witnesses known to frequent the courts. The more notorious the case, the greater the number of prospective informants. They rush to testify like vultures to rotting flesh or sharks to blood. They are smooth and convincing liars. Whether they seek favours from the authorities, attention or notoriety they are in every instance completely unreliable. It will be seen how frequently they have been a major factor in the conviction of innocent people and how much they tend to corrupt the administration of justice. Usually, their presence as witnesses signals the end of any hope of providing a fair trial.
Peter de C. Cory
Inquiry into the wrongful conviction of Thomas Sophonow
The testimony of secret witnesses A and B was a particularly dramatic part of Scott’s trial and became a major part of the crown case. They were, of course, an add-on as they did not exist during the investigation, nor did their evidence play any part in the decision to make an arrest. Their evidence was uncorroborated and contributed nothing to the available facts, only adding to conjecture and theory.
Witness A was said to have built a relationship with Scott over a period of time when they were celled together. This period was in fact for only five days (four nights). He later publicly retracted his testimony.
Witness B obtained a substantial reduction in the charges he faced immediately after approaching the police with his story and also received a number of ‘perks’ on his release (car and phone). He seems to continue to lead a charmed life with a recent offence of theft of some $15,000 worth of goods earning him a suspended sentence.
When the evidence given by these informants is placed against the Manitoba Department of Justice guidelines it can be seen that the pathetic evidence presented by these persons would not have passed the test required under these rules on a number of counts.
1. The extent to which the statement is confirmed by independent evidence.
2. The specificity of the alleged statement. For example a claim that the accused said “I killed A. B.” is easy to make but extremely difficult for any accused to disprove.
3. The extent to which the statement contains details and leads to the discovery of evidence known only to the perpetrator.
4. The degree of access that the in-custody informer has to sources of outside information (e.g. media reports etc.)
5. The informer’s general character, which may be evidenced by his or her criminal record or other disreputable conduct.
6. Any request the informer has made for special benefits and any promises that may have been made.
This is not the full list of the fifteen criteria in these recommendations but the few above demonstrate that these witnesses would probably have been excluded from any trial within that jurisdiction.
In considering evidence of U.S. research presented to the Sophonow commission of inquiry, Peter Cory summarised thus:
The findings can be summarized in the following manner:
As a result of the foregoing, I have some hopes, suggestions and recommendations to put forward. I would suggest that Trial Judges and Appellate Court Judges should recognize the dangers that arise in hearing the testimony of these informants. I therefore most earnestly and respectfully express the hope that the occasion will arise for the Supreme Court of Canada to consider again the issue raised in R. v Brooks,  1 S.C.R. 237. It may be that the studies done in the United States, together with the Morin and Sophonow Inquiries, have now sufficiently demonstrated the tragic dangers occasioned to the administration of justice by the testimony of jailhouse informants in light of the reliance jurors place upon alleged confessions made to these most unreliable of witnesses. Later, I will recommend that, as a general rule, the evidence of jailhouse informants should be inadmissible.
It reflects poorly on the New Zealand justice system that evidence from witnesses such as this continues to be used by the prosecuting authority.
Cook Strait Sighting
The crown case was that Blade was seen in a position where bodies and evidence could be disposed of without trace.
Possibly the most important peripheral evidence to the crown case was the alleged sighting of Blade some 41/2 to 5 miles into Cook Strait at about 4:30 pm on 1/1/98.
Evidence that Scott arrived at Erie bay shortly after five pm but definitely before 6 pm was given. This was accepted by the defence because of evidence by two witnesses that they had not seen Blade at Erie bay even though they had no reason to notice whether the boat was there or not.
A trial was carried out in 2003 by Keith Hunter, to travel aboard Blade, from about the position of the sighting, to Erie Bay. Tidal conditions were exactly similar to those of 1/1/98 and the start time was relative to the time of the alleged sighting as it related to tide. Blade’s bottom and propeller were clean and the trial was carried out in calm wind conditions. It took Blade two hours and twenty-nine minutes to cover the distance to Erie Bay under ideal conditions.
The yacht Dau Soko travelled from Wellington to Picton on 1/1/98 entering Tory Channel at about 5:00 pm. This puts it at about the position of the alleged blade sighting at the time of the sighting. It was recorded by police that Dau Soko arrived at Tory Channel at 2:00 pm, thus causing it to be disregarded by the defence.
Had the above evidence been presented to the jury it is doubtful that they could have formed the opinion that it was Blade, and by extension Scott Watson, dumping bodies in Cook Strait at 4:30 pm on 1/1/98.
It was important to the crown case that Scott be seen to have lied to police. When looked at in context his statements contained no more or serious discrepancies than those of many of the key witnesses. Scott Watson was expected to be entirely accurate in relating his movements and timings of them.
1. Clothes worn at Furneaux. Scott stated that he wore a grey Jersey etc when he went to Furneaux. The crown contended that as he had been photographed wearing a denim shirt on the night that this was a lie. In the context of his statement he is being questioned about events earlier in the day when mention is made of this clothing. Scott had been photographed earlier that day wearing just such clothes.
2. Time of departure from Furneaux. The stated time of departure was estimated by Scott as being 6:30- 7:00 am and was qualified by his being uncertain of this time. The crown contended that this departure was in the region of 4:30- 5:00 am. The evidence for this being the sighting by two people of a vessel further down Endeavour Inlet, the evidence of a single person aboard the vessel ‘Unicorn’ and a photograph said to have been taken at 6:00 am on 1/1/98 in which Blade does not appear.
There is ample evidence that this photo was not taken until 7:00am or later.
There is evidence from two separate sources that a small yacht left the area at a time between 6:30 am and the time that Unicorn departed. Analysis of the evidence shows no known yacht within the area having left during this time. Police, also, have been unable to provide the identity of this vessel.
The crown contention that the early sightings at the Pines were Blade is based solely on the premise that Blade was the only vessel whose time of departure was unaccounted for. No definitive identification of Blade was given and the description of the vessel, in fact, precludes Blade. (It should be noted that the crown implied to the jury that because this vessel displayed only one steaming light that it therefore had only one mast. Regulations for the lighting of vessels require that one steaming light be displayed by vessels under 100 feet in length and two at different heights on vessels over this length. As the description of the vessel was that its length was about 38ft and showed one light on a mast it cannot be ruled out that it was in fact the “mystery Ketch” that was sighted by these people. There are now two unidentified vessels leaving Furneaux Lodge, sighted at different times, one of which is not allowed for within the crown theory or the evidence). That there was an excess of vessels seems to have been noticed by the crown prosecutor as late as seven days before the beginning of the trial. This evidence was not adduced by the crown, had it been, over one hundred and fifty crown witnesses would have become redundant.
3. Return to Blade at 2:00 am. This statement although qualified by Scott was taken as a lie throughout the investigation and through the depositions hearing. The police investigation confirmed that Scott was ashore until about 4:00 am. It was not until the prosecutor required that this not be a lie that the time of 2:00 am became the gospel truth, even though the evidence of the Mina Cornelia group precludes the possibility of this being so.
4. Arrival time at Erie Bay. Early statements by the Green family suggest that Scott arrived at Erie Bay sometime shortly after lunch. This time is entirely in keeping with the speed of Blade, the various confirmed sightings of Blade and the information given to Scott by XXXXX XXXXX (name suppressed). It is of interest that these times did not change until Mr. XXXXX’s court appearance on a charge of possession of 200 cannabis plants when both he and his daughter’s stated time of Scott’s arrival changed to sometime after 5:00 pm. Green received a suspended sentence for an offence that normally carries an approximately four year prison sentence. The Jury were not apprised of this fact.
The cleaning evidence
This evidence was initiated by a particularly eager detective and was, in fact, negated by his own fellow officers when one of them told the trial judge that the number of fingerprints found on Blade was neither more nor less than he would expect to find in similar areas of any house. The argument put forward by the crown was that there were no fingerprints other than those of Scott, his sister and one or two other unidentified people on Blade because of this cleaning.
The reported “small number” of fingerprints taken from Blade understated the results by not including articles taken from the boat and tested in Christchurch.
Little mention was made of the luminol testing of Blade. Luminol is a substance that reacts with chemicals that are contained in blood. That blade produced a reaction on deck in the area where the mooring and anchor chain lies is illustrative that it also reacts to oxides of iron or zinc.
Blade’s interior was subjected to luminol tests. There was no evidence given of any reaction other than that on the carpet where Scott had walked with a cut to his foot on the 2nd of January 1998. The jury were not told that normal washing or scrubbing will not negate a luminol reaction.
The jury were asked to believe that two murders and the rape of a menstruating woman were accomplished within a confined space without the loss of any blood or body fluids on the part of the victims.
The position of the ketch
This issue was handled, by police, and prosecution with a wholesale denial that such a vessel existed. Once again, the testimony of Guy Wallace was pivotal to the crown case with the position in the bay where he said he disembarked the missing pair being set in stone but for some reason unreliable as to the description of the vessel.
The other passengers on the naiad supported Wallace’s description to varying extents as their knowledge and interest in boats allowed. They did not support his estimate of the position to the same extent. Nor that the ketch was rafted with other boats. To this is added a number of sightings of such a vessel by others and analysis of these sightings gives a definitive position within the bay of a vessel fitting the description. This position is not where blade was moored. Wallace has since stated that he was confused about the position of the ketch and has put it in a position roughly corresponding to that of the bulk of sightings. He says also that he advised police of this and was informed “it doesn’t matter”.
Identification of the Ketch
Another factor in the police investigation was the failure of police to identify vessels sighted by members of the public during the period of new years day and later, a line of sightings which progress out of Endeavour Inlet and Queen Charlotte Sound on the morning of 1st January 1998, in particular.
There is ample evidence that police had actively eliminated inquiries into ketches from their investigation by as early as 11 January 1998 to the extent that reports of sightings were not recorded or followed up. There are numerous people who reported sightings and were turned away, told that the police had their man, or were not contacted after making a report. Many of these reports were not recorded by police.
Police contended that every boat arriving and leaving Furneaux Lodge was accounted for and that none could arrive or leave unnoticed. This is a patently false position and was conceded as such by detective McLaughlin in court. There is ample evidence of boats, which, though seen by witnesses, are not able to be either identified or assigned as boats accounted for.
The “Scruffy” man
Scott underwent a number of transformations, insofar as his personal appearance was concerned, during the police investigation. Initial descriptions of the person aboard the Wallace naiad trip were of a shaggy haired, unshaven man. Police collected evidence, initially, to show that Scott Watson commonly went about in a “scruffy” condition. The persons who said this were not close associates and would never have seen Scott in other than a work environment. The basis for this was that police were of the opinion that he had cut his hair and cleaned up his general appearance in an attempt to mislead the police investigation. Photographs taken by police on the 8th and 12th of January 1998 show a Scott Watson who, while not a snappy dresser is at least clean shaven and short haired. Photos taken on 31st of December show similar grooming. Despite these photographs police were prepared to say:
· Police are in possession of photographic evidence suggesting that WATSON was unshaven and had scruffy hair.
Affidavit of R. Pope
28 July 1998
No such evidence exists.
By the time of the depositions hearing the main identification witnesses were still describing an unshaven man with up to two weeks of growth on his face but at trial this had diminished to “stubble”.
The Hatch Scratches
The evidence of scratches in the soft insulation glued to the forward hatch was a particularly emotive and misleading piece of evidence. It was presented in such a way as to conjure pictures of Jews being showered. It had no logical basis in fact and the closest the crown came to proof of Olivia Hope having made these scratches was ESR scientist Peter Wilson’s testimony that they were “consistent” with being made by fingernails. For some reason it was not suggested that Ben Smart might have made these marks.
Photographic evidence exists as to the length of Olivia Hope’s nails, which contradicts the rather misleading impression given by her father in his trial testimony. The jury did not see this photograph.
Evidence was given by Wilson that the scratches extended to the edges of the foam and beyond the inner hatch coaming. The hatch would need to be open for these marks to be made from inside the boat. It is important to note that although Wilson gave this evidence, it was not noted by him until pointed out by defence expert, Tony Gummer. Wilson had not until then bothered to examine the hatch in position aboard Blade.
Crown evidence was presented via a recorded telephone conversation that the marks were made by Sandy Watson’s children. Sandy Watson was not called by the crown to give evidence. It was suggested by the crown that it was up to the defence to call her, thus implying that there was an onus of proof on the defence.
Interception warrants were issue by the Wellington High Court at intervals during the police investigation. In total five applications were made by Detective inspector Rob Pope and warrants were issued by various High Court judges and applied to 15A Hampden St., 55 Hampden St., the vessel Blade and telephones both public and residential. This monitoring continued for 41/2 months during the police investigation.
The prosecution presented evidence, consisting of portions of taped telephone conversations. The evidence itself was of little import but the manner of presentation was pure melodrama. First exhibit GE 130 was produced as an exhibit. This was a key to a locked metal box (exhibit 129) containing the audiotapes of the recorded conversations. This news set the stage for the playing of the tapes late in the trial. This was accomplished by distributing audio headsets to selected persons within the court. The jury, prosecution, defence, Judge, media and Hope and Smart families were privy to this eavesdropping. The effect was that the impression was given that some really important information was involved. Effect was all there was.
An aspect of this surveillance evidence was that the conversations used as evidence were between Scott and a person who was, in fact, a police agent. Over a four and a half month period she had twenty-nine telephone contacts with Scott and Thirty-five with police.
In March of 2003 the affidavits that were presented to the court in application for the warrants that allowed this electronic eavesdropping to occur were obtained. Analysis of the contents brought to light a number of factual discrepancies in these sworn affidavits. In light of these discrepancies there is doubt about the legitimacy of the warrants and thus the evidence presented.
A further consequence of these factual discrepancies is that one of the warrants was issued by the trial judge, Justice Heron, and if they were believed by him, as they must have been for the warrant to be issued, then it is probable that the judge brought this misleading information to the trial as ‘inside information’ and that the fairness of the trial suffered as a result.
The painting of the cabin sides and trim of Blade was planned prior to the New Year and was accomplished in a neat and workmanlike manner. To suggest an attempt at disguise was little more than silly. Blade is of a unique design and there is little that could be done to the boat other than major alterations to its structure to disguise it.
Storage of wind vane
Storage of the self-steering vane was presented as an attempt to disguise Blade. The instruction manual belonging to this gear suggested removal if the gear was to be unused for a period of more than three days. There were few places aboard Blade that could accommodate this vane other than where police found it.
Scott’s trial and, in fact, the police investigation, was marked by a pronounced character assassination that led to a lack of focus on the really important issues. This campaign had begun in February of 1998 when a “suspect profile” of Scott Watson was distributed to a private search group from where it found its way to the hands of Gerald Hope and thence to the media.
According to Rob Pope six copies of the profile, which included details of Watson's prior convictions, had been handed out to key members of the private search parties on the understanding they would be returned to the police at the end of the search. In the event one found its way into the hands of TVNZ Assignment reporter Kerry Anne Evans.
Watson's criminal convictions and other prejudicial allegations regarding his character - most of which would never form part of the prosecution case - became widely known among most journalists covering Operation Tam.
Control of the Crime Story
Free Speech vs Fair Trial
The minds of the Hope and Smart families as well as the media were effectively poisoned against Scott from this time.
The rationale for the continuation of this character assassination at trial was that it led to “identification”. The trouble with this was that it did not lead to any identification aboard the Wallace naiad. It was never in contention that Scott was at Furneaux Lodge, nor that he spoke to, or was seen by, a number of people there.
The thrust of this evidence was to the effect that numerous persons felt threatened by Scott’s behaviour at both the lodge and earlier. In fact there was no evidence of any physical action that could have led to any belief that a threat was imminent. Being in one’s “personal space” is not yet a crime and is certainly not proof of murder.
This evidence was inherently unfair as rules of evidence preclude the defence from calling character witnesses.
The character assassination of Scott Watson began long before the trial and continued through it. Early examples were obvious enough to cause Scott’s legal advisors to write to the Solicitor General on 12/3/98 warning of the likely effects of police press releases and expressing concern that the fairness of any trial would be jeopardised. This concern was fully justified by subsequent events.
The missing Clothes
It was the police and crown contention that none of the clothing worn by Scott at Furneaux Lodge was found. This stretches the truth as by 12/1/98 police were in possession of all of Scott’s clothing. They had jeans, shoes, shirts, in fact almost all of his possessions apart from the clothes he was wearing when interviewed by police on that day. Within weeks they were in possession of the remaining clothes. Although many of these clothes were tested both for blood and saliva none showed any connection to the missing pair. This did not support the police case and so, again, a lack of evidence became the evidence of murder. This is an example among many where the crown effectively transferred the onus of proof to the defence.
Fairness of trial
Scott’s trial was inherently unfair, and this condition can only be laid at the door of the trial judge, Justice Heron.
1. Insistence by the trial judge that the trial start date should be met for court logistical reasons.
2. There was really no excuse for the volume of evidence placed before the jury.
3. The mass of prejudicial evidence allowed by the trial judge had no bearing on the facts of the case and, distracted and confused the jury. His constant reminders to the jury that this evidence was for the purpose of “identification” was misleading as no identification was needed in these circumstances.
4. Further Prejudicial evidence allowed by the trial judge late in the trial had no relation to the alleged offence and even though the jury was warned on the use of this evidence the crown emphasised and encouraged use of the prejudicial aspects a number of times in closing.
5. The summation by the trial judge was inherently unfair in that far from critically analysing all of the evidence, he in fact bolstered, and even improved, the crown case to the detriment of the defence.
6. The trial judge’s final comment to the jury directed them to a guilty verdict and left them in little doubt that he expected this to occur.
7. The comment by the trial judge in an interview following the trial that this was “the story of young love brutally cut short” displayed that he had been influenced by the idolisation of the missing pair.
8. The participation by the trial judge in proceedings during the police investigation when he was given false information in affidavits in support of interception warrants could well have coloured his thinking prior to and during the trial.
9. The general conduct and management of the trial was such that the jury were presented with the sight of the defendant seated in the raised dock, and under close guard at all times. The impression thus given the jury was of a person who needed to be confined.
10. Defence counsel were given no opportunity for an opening statement at the beginning of proceedings where the jury could be given a general outline of the defence case to enable them to assess defence evidence elicited from crown witnesses.
11. When the defence did finally have the opportunity to address the jury, some ten weeks into the trial they were interrupted and cut short by the trial judge.
12. Jury had no access to notes of evidence.
After Scott’s conviction the verdict of the jury became the proof of guilt, creating a circular argument, and absolving anyone of having to produce facts to substantiate a position of guilt. The crown submission when seeking a non-parole period amply demonstrates this.
10.7 There is no background of interaction, connection, Friendship or relationship between either of them with him. There is no suggestion that what occurred on the yacht that led to their murders had any of the normal type of explanations for killings.
10.7.1 There were no domestic relationship difficulties or a menage a trois.
10.7.2 There was no gang involvement.
10.7.3 There was no background of drug dealing or financial arrangements gone wrong.
10,7.4 There was also no suggestion the there was any provocation that led to the killings.
10.8 There is no suggestion of any material available in human terms that might explain why what happened on that yacht, did happen.
To be able to state the above requires a quantum leap in logic from what the evidence actually was, to an almost religious faith in the jury verdict.
There is then the statement that completely defies logic in that it implies that a lack of submission should somehow entitle the accused to further punishment.
17. There is no indication that the offender has any remorse for what he has been found guilty of.
An obvious answer to this is that it is the behaviour of an innocent man and should ring alarm bells within the legal establishment. Instead it earned a non-parole period of seventeen years, said by the judge to equate to the age of the “victim”.
The non-parole hearing was originally set down for October 8th 1999. Crown submissions were delivered to the office of Bruce Davidson at 5:00 pm on the evening of the 7th. This late delivery led the defence to request a delay to allow the crown submission to be answered. By coincidence the only day available on the judge’s calendar was November 26th, the day before the general election. A coincidence? Yeah right!
The appeal process
Reference of a restricted number of points to the Court of Appeal produced a judgement that read like a rubber stamp of approval for the actions complained of. Even though the court demonstrated a propensity to speculate on what a jury may or may not have thought about particular issues there is an aversion to any criticism of a jury verdict. There is no similar aversion to agreement with it, even if spurious, transparent or factually incorrect arguments are used to reinforce this agreement.
Underlying this is a question of personal sympathies and collegiality. It is hard to suppress the suspicion that, because Justice Heron was ill and was in fact dying of cancer, his colleagues on the Court of Appeal would never entertain criticism of his actions and decisions.
Summary of New Evidence
1. Statements by Guy Wallace that Scott Watson not man on naiad.
2. Statements by Guy Wallace regarding position of ketch.
3. Statements by Roz McNeilly that Scott Watson not man described at bar.
4. Recantation of evidence by “Witness A”
5. Evidence of early use of montage A and failure by police to disclose same.
6. Dau Soko evidence, re time of arrival at Tory Channel entrance.
7. Evidence of female skull found Pegasus Bay area before or during trial in 1999.
8. Evidence of lack of evidence found during Moa hunt, in area of Tory Channel entrance
9. Evidence of Witness B suspended sentence for $15,000 theft.
10 Evidence of ketch sightings reported to police and not recorded.
11. Evidence of Blade plus at least one other unidentified vessel leaving Furneaux area early morning 1/1/98.
12. Evidence of false statements of fact in warrant applications.
13. Evidence of Blade test, Cook Strait to Erie bay.
1. The justice system has failed Scott Watson at every turn of its convoluted path.
2. The prosecution was carried out against a body of evidence that should have cleared him at the investigation stage. As the investigation progressed and the costs increased so did the pressure to justify these costs. Police and prosecution were driven into a corner. This vicious cycle continues to this day.
3. The opportunities for finding out what had happened to the missing pair diminished as time was spent on the suspect preferred by police to the detriment of other inquiries. The most likely other inquiry (the ketch) was in fact. actively discouraged from an early stage.
4. The prosecution became a matter of proceeding and clearing the desk, win or lose.
5. The massively long trial became a means of hiding the true facts among a mass of trivia. It became not so much a matter that the jury was misled, as they were worn down, bored and confused by the ways of the legal system. This can only have been a planned prosecution tactic.
6. The overload of trivia presented to the jury without any written reference left them open to direction by an authority figure (the judge) whose final words left them in no doubt of his wishes.
7. The appeal points presented by the defence were chosen to require the court of appeal to read and become familiar with the pertinent points of the defence case at trial. That the court failed to do so becomes apparent when they say in their judgement;
“But an examination of the transcript shows that there was extensive cross-examination on those issues.” (In relation to a possible return to shore.)
Examination of the transcript shows no questions of any of the witnesses which can be remotely construed in this fashion. The court was in fact either too lazy to read the transcript or did read it and then lied about its contents.
7. The rejection of the appeal to the Privy Council would have been easier to accept had there been no New Zealand judge on the panel.